Duncan Brooks discusses his experiences of arbitration both as an arbitrator and as a barrister representing a divorcing client.
Arbitration of family financial matters on divorce is possibly fastest-growing form of dispute resolution in England and Wales. Since the advent of the first family law arbitration scheme here in 2012, it has increasingly captured the imagination of divorcing couples who are frustrated with the delays, potential publicity and inflexibility of the court process, yet for whatever reason need an independent and binding decision made by a third party in order to move on with their lives. I am privileged to have been appointed as an arbitrator in seven cases to date, and to have been involved as an advocate in several more.
The arbitration process is inherently flexible. It is possible for those involved to request an arbitrator’s decision on all financial aspects of their divorce, or just on the issue of maintenance where a capital settlement is already agreed, or vice versa, or on a discrete issue such as child maintenance where there are no other ongoing issues. This flexibility also extends to financial disclosure, which can be ordered on a bespoke basis: there is no cast-iron rule as to use of the Form E, for example.
The majority of arbitrations in which I have been involved have taken a similar form to a court hearing, where each advocate speaks in turn and evidence is called and tested. However, this is not obligatory: I have been involved in two arbitrations where nobody gave oral evidence, as the people involved had agreed to deal with the issues simply by having their barristers present their arguments to the arbitrator. Even that is deemed unnecessary in some cases, and it is possible to get an arbitrator’s decision on the basis of written arguments alone, which can be very cost-effective for specific and discrete issues. Also, it’s open to the arbitrator to deal creatively with particular points that arise as part of the decision-making process: for example, in one case, I had to decide about the appropriate cost of re-housing. Rather than hear evidence sequentially, as is usual, I heard evidence from both parties concurrently – a process known as “hot-tubbing” – which meant that I could lead the questioning and explore properties with each party at the same time.
I feel strongly that the experience of arbitration for people going through divorce is better than the court alternative. Because the arbitrator is working for the people involved, he or she can devote the necessary time fully to pre-read all of the papers and ensure complete familiarity with the circumstances. There are no other cases competing for the arbitrator’s time, unlike in a court environment, and case management matters can be dealt with by email or over the telephone meaning that costly interim visits to court can be avoided.
The arbitration “hearings” take place in a non-court environment, which is usually less intimidating than a court setting, plus the coffee and sandwiches are better! In three of the arbitrations in which I have served as arbitrator, the parties have chosen to be referred to by their first names only.
Another advantage in present circumstances is that arbitrations remain entirely confidential – the press have no right to attend an arbitration, although they do have the right to attend court hearings.
The procedure saves time and, counter-intuitively perhaps, money too. There is no court diary to worry about, meaning that the decision can be taken sooner. This shortens the process of litigation and the ongoing costs reduce as a result. The actual hearing is usually much shorter than it would be in court, because of the ability of the arbitrator fully to familiarise him or herself in advance. As arbitrator, I have yet to take more than 1 day over the hearing, because I have pre-read the papers in full and will deliver a written award promptly after the hearing finishes. These are cases that might be listed for three or more days in court, with all the attendant stress and costs, plus a lengthy wait for a final decision afterwards.
Arbitration is a bespoke and modern method of resolving financial disputes on divorce, which contrasts favourably with the often archaic workings of our court system. For those seeking to divorce creatively, cost-effectively and with dignity, it is surely worth investigating.